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2024
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[2024] ZAMPMBHC 72
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Acting Prime Minister v Swaziland News (Pty) Ltd and Others (1643/21) [2024] ZAMPMBHC 72; [2024] 4 All SA 714 (ML) (27 September 2024)
FLYNOTES:
CIVIL LAW – Defamation –
Newspaper
articles
–
Alleging
articles make harmful and misleading allegations against eSwatini
government – Articles defame persons mentioned
therein –
Publication was unlawful – Grounds of justification not
established – Minister was not defamed
– Minister
failed to establish an infringement of personal rights – Not
entitled to interdictory relief –
King and other officials
have not established a clear right – No evidence regarding
effect of statements in articles
– Application dismissed.
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA
DIVISION (MAIN SEAT)
Case
Number: 1643/21
1.
REPORTABLE: YES/NO
2.
OF INTEREST TO OTHER JUDGES: YES/NO
3.
REVISED.
DATE:
27 September 2024
SIGNATURE
[SIGNED]
In
the matter between:
THE ACTING PRIME
MINISTER
(who is cited in his
capacity as the representative and the executive person in charge
of the Government of eSwatini responsible
for the overall
governance of the Kingdom of eSwatini and who is cited in his
capacity as the representative of the eSwatini
Head of State)
Applicant
and
SWAZILAND NEWS
(PTY) LTD
(Registration Number:
2018/0005438/07
First
Respondent
ZWELWI MARTIN
DLAMINI
(Identity Number:
8[...])
Second
Respondent
AVULEKHA AMAZULU
(PTY) LTD
(Registration
Number: 2015/054357/07)
Third
Respondent
This
judgment will be handed down through distribution to the parties by
e-mail and by publication on SAFLII. The judgment shall
be deemed to
be delivered sat noon on 27 September 2024.
JUDGMENT
Roelofse
AJ:
Introduction
[1]
The dispute is about series of articles offensive (“the
articles”) that were published by the respondents about the
King of eSwatini, various of the eSwatini Government’s
Ministers, certain public officials including other persons all of
which the eSwatini Government contends are defamatory of the King of
eSwatini and his entire government.
[2]
The articles were published by the first and second
respondents (“Swaziland News”) on its website (hosted by
the third
respondent) and on Swaziland News’s other social
media platforms.
[3]
The applicant is
the Acting Prime Minister of eSwatini (“the Minister”),
allegedly duly authorised in these proceedings.
The Minister
represents eSwatini’s Head of State, King Mswati III (“the
King”)
[1]
in these
proceedings. The Minister says that “
Any
reference to the ‘applicants’ includes me [the applicant]
in my personal and representative capacity, Head of State,
the
Government of eSwatini, the various Ministers and public officials of
the Government of eSwatini.”
[2]
[4]
I therefore accept that the Minister seeks to obtain relief
not only for himself but also for the King and the eSwatini
Government.
[5]
The second respondent (“Mr. Dlamini”) is the first
respondent’s editor. Mr. Dlamini admitted that he is the author
of the articles. Mr. Dlamini is a citizen of eSwatini but apparently
finds himself in South Africa.
[6]
The first and third respondents are companies registered and
domiciled in South Africa.
[7]
This application concerns a difficult issue namely the
omnipresent divide between freedom of expression, more particularly,
the
freedom of the press and the right to dignity and a good name.
[8]
In
Islamic
Unity Convention v Independent Broadcasting Authority and Others
[3]
Langa DCJ said as follows about freedom of expression:
“
[26] This Court
has held that - “. . . freedom of expression is one of a ‘web
of mutually supporting rights’ in
the Constitution. It is
closely related to freedom of religion, belief and opinion (s 15),
the right to dignity (s 10), as
well as the right to freedom of
association (s 18), the right to vote and to stand for public office
(s 19), and the right to assembly
(s 17) . . . The rights implicitly
recognise the importance, both for a democratic society and for
individuals personally, of the
ability to form and express opinions,
whether individually or collectively, even where those views are
controversial”. As
to its relevance to a democratic state, the
Court has pointed out that freedom of expression - “. . .
lies at the heart
of a democracy. It is valuable for many
reasons, including its instrumental functions as a guarantor of
democracy, its implicit
recognition and protection of the moral
agency of individuals in our society and its facilitation of the
search for truth by individuals
and society generally. The
Constitution recognises that individuals in our society need to be
able to hear, form and express
opinions and views freely on a wide
range of matters . . .” [Footnotes Omitted.]
[9]
In
United
Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd
and Others
[4]
,
the inevitable divide between freedom of speech and the protection of
reputation and a good name is aptly described as an “intersection”:
“
In democratic
societies, the law of defamation lies at the intersection of freedom
of speech and the protection of reputation or
a good name. The law
does not allow the unjustified savaging of an individual’s
reputation. The right of freedom of expression
must sometimes yield
to the individual’s right not to be defamed. In striving to
achieve an equitable balance between the
right to speak your mind and
the obligation not to harm or injure someone else’s name or
reputation, the law has devised
defences such as fair comment, and
truth and in the public interest.”
[10]
In
Islamic
Unity Convention
[5]
,
the divergence of freedom of speech and the right to dignity was set
out. I have resolved to quote extensively from the judgment
because
it shows that the transformation of society to an open, transparent
and free society is dependent upon freedom of expression:
“
[27]
Notwithstanding the fact that the right to freedom of expression and
speech has always been recognised in the South African
common law, we
have recently emerged from a severely restrictive past where
expression, especially political and artistic expression,
was
extensively circumscribed by various legislative enactments.
The restrictions that were placed on expression were not
only a
denial of democracy itself, but also exacerbated the impact of the
systemic violations of other fundamental human rights
in South
Africa. Those restrictions would be incompatible with South
Africa’s present commitment to a society based
on a
“constitutionally protected culture of openness and democracy
and universal human rights for South Africans of all ages,
classes
and colours”. As pointed out by Kriegler J in Mamabolo -
“
. . . freedom to
speak one’s mind is now an inherent quality of the type of
society contemplated by the Constitution as a
whole and is
specifically promoted by the freedoms of conscience, expression,
assembly, association and political participation
protected by
sections 15 to 19 of the Bill of Rights.”
[28] South Africa is not
alone in its recognition of the right to freedom of expression and
its importance to a democratic society.
The right has been
described as “one of the essential foundations of a democratic
society; one of the basic conditions for
its progress and for the
development of every one of its members . . .”. As such it is
protected in almost every international
human rights instrument.
In Handyside v The United Kingdom the European Court of Human Rights
pointed out that this approach
to the right to freedom of expression
is - “applicable not only to ‘information’ or
‘ideas’
that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that
offend, shock or
disturb . . . . Such are the demands of that
pluralism, tolerance and broadmindedness without which there is no
‘democratic
society’.”
[29] The pluralism and
broadmindedness that is central to an open and democratic society
can, however, be undermined by speech which
seriously threatens
democratic pluralism itself. Section 1 of the Constitution
declares that South Africa is founded on the
values of “human
dignity, the achievement of equality and the advancement of human
rights and freedoms.” Thus,
open and democratic societies
permit reasonable proscription of activity and expression that pose a
real and substantial threat
to such values and to the constitutional
order itself. Many societies also accept limits on free speech
in order to protect
the fairness of trials. Speech of an
inflammatory or unduly abusive kind may be restricted so as to
guarantee free and fair
elections in a tranquil atmosphere. There is
thus recognition of the potential that expression has to impair the
exercise and enjoyment
of other important rights, such as the right
to dignity, as well as other state interests, such as the pursuit of
national unity
and reconciliation. The right is accordingly not
absolute; it is, like other rights, subject to limitation under
section
36(1) of the Constitution. Determining its parameters
in any given case is therefore important, particularly where its
exercise
might intersect with other interests. Thus in
Mamabolo, the following was said in the context of the hierarchical
relationship
between the rights to dignity and freedom of expression:
“With us the right to freedom of expression cannot be said
automatically
to trump the right to human dignity. The right to
dignity is at least as worthy of protection as the right to freedom
of
expression. How these two rights are to be balanced, in
principle and in any particular set of circumstances, is not a
question
that can or should be addressed here. What is clear though
and must be stated, is that freedom of expression does not enjoy
superior
status in our law.” [Footnotes omitted.]
[11]
In
Midi
Television (Pty) Ltd v Director of Public Prosecutions
[6]
,
the principle pertaining to a free press (in all its forms) and its
limitation is explained by Nugent JA:
“
[5]
Freedom of expression, which includes freedom of the press and other
media, is protected by s 16 of
the Bill of Rights. That a free
press (by which I mean the media in all its forms) is indispensable
to democracy is axiomatic
and has been articulated so often that
nothing is served by adding to what has been said in that regard.
Yet the constitutional
promise of a free press, like other
constitutional promises, is not absolute. In issue in this
appeal is the extent to which
that protected freedom may be abridged
in favour of preserving the integrity of the administration of
justice.
[6]
It is important to bear in mind that the constitutional promise of a
free press is not one that
is made for the protection of the special
interests of the press. As pointed out by Anthony Lewis, in a passage
that was cited
by Cameron J in Holomisa v Argus Newspapers Ltd:
‘Press exceptionalism – the idea that journalism has a
different
and superior status in the Constitution – is not only
an unconvincing but a dangerous doctrine.’ The
constitutional
promise is made rather to serve the interest that all
citizens have in the free flow of information, which is possible only
if
there is a free press. To abridge the freedom of the press
is to abridge the rights of all citizens and not merely the rights
of
the press itself.”
[12]
The matter is further complicated because, besides the central
issue being defamation and the redress that is sought, the parties
are citizens of two countries, namely, South Africa and eSwatini,
each with their own municipal law that provides for the protection
of
fundamental rights including the right to dignity and the right to
freedom of expression, the jurisdiction of this court to
adjudicate
over the dispute is challenged and, the applicant’s
locus
standi
is in dispute.
The
dispute
[13]
The Minister, the
King and the eSwatini Government are aggrieved by the articles that
were published by the respondents over the
period 1 August 2020 to 12
December 2022. According to the Minster, “…
.all
of those articles are critical of [the applicant] either in my
personal capacity or representative capacity as aforesaid, and
in
this regard, I refer to the defamation apparent in the following
headings appearing for articles published by the Swaziland
News
.”
[7]
[14]
The Minister also alleges that Swaziland News maintains a
website on the Internet and under the tab “investigations”,
it contains a link to Swaziland News’s previous articles. The
link, according to the Minister, is accessible to anyone who
has
access to the Internet. The link includes the articles.
[15]
The Minister
initially applied for the following relief
[8]
:
“
1
granting a mandatory interdict: ordering and directing the first and
second respondents (including
their agents, representatives and
employees):-
1.1
Not less than 7 (seven) calendar days notice (excluding (1) public
holidays in South Africa and eSwatini
and (2) Sundays) before
publishing any article which is prima facie defamatory and/or
critical of the applicant and/or the Government
of eSwatini and/or
the Head of State of eSwatini and/or a Minister or public servant in
the Government of eSwatini and/or a member
of the Royal Family in
eSwatini, to provide the applicant, through the following
representatives:-
1.1.1
……
1.1.2
……
with the written content
of the material as well as a list of questions in relation to the
proposed publication to be published
in order for the applicant to
comment thereon; and
1.2
to publish any comment furnished by the applicant in conjunction
with
any article published by the respondents of and concerning the
applicant, the Government of eSwatini and / or the Head of
State of
eSwatini and/ or a Minister or public servant in the Government of
eSwatini and / or a member of the Royal Family in eSwatini
in a
way in which, and in accordance with, what is expected of a
responsible journalist and / or news publication as provided for
in
the South African press Council code of ethics……”
[16]
In an
“AMENDED ORDER PRAYED”
[9]
,
the Minister seeks additional relief as follows:
“
[2]
It is declared that the First and Second Respondents:
[a]
are in constructive contempt of Court from the time of receipt of the
founding papers in
this application by continuing to publish articles
of a nature which are defamatory and/ or crimen injuria in a
malicious campaign
of fake news and the harassment directed at the
Applicant in both his personal and representative capacities;
[b]
have committed acts of terrorism under sections 2 and 3 read with the
definition of terrorist
activity in section 1 of the Protection of
Constitutional Democracy Against Terrorist and Related Activities Act
no 33 of
2004 by publishing false allegations against King
Mswati of eSwatini and the soldiers and police of the
Eswatini
government in the articles of 25 November 2022 and 13
November 2022 in relation to the territorist activities of the
organization
known as the Swaziland International Solidarity Forces
described in those articles.
[3] An order interdicting
and restraining the first and second respondents from publishing
false allegations against King Mswati
of eSwatini and the soldiers
and police of the Eswatini government in relation to the terrorist
activities of the organization
known as the Swaziland International
Solidarity Forces on the website of the First Respondent or any
other way in the Republic
of South Africa.”
The
interim order granted
[17]
The court heard
the parties on 13 August 2024. Although being acutely mindful of what
was said in
HIX
Networking Technology CC v System Publishers (Pty) Ltd
[10]
,
I granted an interim order in favour of the Minister. I did so in
order to give the eSwatini Government some measure of restricted
protection as in my view, the balance of convenience favoured the
eSwatini Government while I was considering what final relief
(if
any) to grant to the Minister and those he purport to represent. The
interim order reads:
“
[1]
It is ordered that pending the delivery of a final judgment in this
matter an order is made granting
a mandatory interdict: ordering and
directing the First and Second Respondents (including their agents,
representatives and employees):-
[a]
to furnish not less than 72 hours’ notice before publishing any
article which is prima facie
defamatory and/or critical of the
Applicant and/or the Government of eSwatini and/or the Head of State
of eSwatini and/or a Minister
or public servant in the Government of
eSwatini and/or a member of the Royal Family in eSwatini;
[b]
to provide the Applicant with such notice through the following
representatives of the Applicant:-
[i]
ALPHEOUS NXUMALO, by email.
[ii]
THABILE MDLULI, with email address:
j[...]
;
by providing the written
content of the material as well as a list of questions in relation to
the proposed publication to be published
in order for the Applicant
to comment thereon and;
[c]
to publish any comment furnished by the applicant in conjunction with
any article published by
the First and Second Respondents of and
concerning the Applicant, the Government of eSwatini and/or the Head
of State of eSwatini
and/or a Minister or public servant in the
Government of eSwatini and/or a member of the Royal Family in
eSwatini in a way in which,
and in accordance with, what is expected
of a responsible journalist and/or news publication as provided for
in the South African
Press Council Code of Ethics (the “Code”),
a copy of which is annexed to the Founding Affidavit as Annexure
“EG4”.
[2]
Judgment is reserved on the remaining aspects of the matter including
the question of costs.”
Swaziland
News’ alleged unlawful conduct
[18]
The eSwatini Government have been monitoring and reading
various articles published by Swaziland News.
[19]
The Minister alleges that the articles refer to the
King, members of the royal family various Ministers and/or public
officials
the eSwatini Government and members of parliament. The
Minister alleges that it is apparent from the content of the articles
themselves
that Swaziland News and Mr Dlamini consistently make
harmful derogatory false and misleading allegations against the
eSwatini Government
in order to undermine the legitimate purpose,
authority and decisions of the eSwatini Government and to lower its
standing in the
public’s eyes. The Minister says that these
articles are relentless, unsubstantiated and cause reputational harm
to the eSwatini
Government.
[20]
The Minister mentions the articles, their title and some of
their content. The content, so the Minister alleges, is offensive and
defamatory. The articles, amongst other things say that: the King,
the CEO of the National Defence Council, a Chief, the King’s
CEO and army Commander met. The King stated that they must work
together in unity to protect the Royal Family and his Throne at
all
cost; the King and his Finance Minister are secretly transferring
ownership of a large portion of land through questionable
lease
agreements; the secret dealings of the King was prevented from
reaching public domain through the State controlled media;
the King
seized full control of the Public Service Pension Fund; the King
benefitted from the Public Service Pension Fund’s
systematic
looting; the Public Service Pension Fund is controlled and looted by
the King and the Royal Family; the King allegedly
defrauded the Swazi
Nation in a shareholding deal; eSawatini is led by a serial dealer
who had no interest for the nation;
the King grabs shares from
giant companies; the King defrauded a company and the eSwatini
Government in taxes; the King demanded
free shares in the cannabis
farming industry and demanded bribes; the King can best be described
as a dangerous dagga dealer hiding
behind a COVID-19 mask; the King
manipulates the law; the King pushes his corrupt dealings using
politicians; the King is the most
corrupt, selfish and greedy King in
the history of eSwatini; and the King manipulates the law including
his absolute powers to
accumulate wealth through shady dealings.
[21]
The Minister alleges that the statements in the harmful
articles are clearly prima facie and/or per se defamatory on an
ordinary
reading of the words on an ordinary reading of the words or
any interpretation thereof. The statements were made with the intent
to: injure the reputation of the eSwatini Government; undermine the
eSwatini Government; and lower the character of the persons
mentioned
in the articles.
[22]
The Minister further alleges that the articles impute
dishonesty, fraud, criminal conduct, association with criminals,
unethical
or unprincipled behaviour, grave misconduct as well as
base, sordid and corrupt motives; that the publication of the
articles is
unlawful and/or wrongful and was published with the
intent to defame the eSwatini Government; the articles remain in
circulation
and continue to cause reputational harm to the eSwatini
Government; certain of the articles reflect on the moral character,
office,
profession, occupation and political character of the members
of the eSwatini Government. In addition, the Minister alleges that
the articles impute dishonesty and treachery; Swaziland News acted
unreasonably because the information and its truth was not verified
or established and that the eSwatini Government was not given (and
the persons mentioned in the articles was not given an opportunity
to
respond to the articles before its publication.
[23]
In an effort to
stop the offending conduct, the eSwatini Government wrote to
Swaziland News. In the letter, the eSwatini Government
requested
Swaziland News to verify the information it wishes to publish and to
afford the eSwatini Government (and the persons
to which the
information relates) a fair and reasonable opportunity to respond
thereto. In the letter, eSwatini Government referred
Swaziland News
to the Code of Ethics and Conduct for the South African Print and
Online Media (“the Code”)
[11]
and drew its attention to some terms of the Code. The terms referred
to are in clauses 1, 2 and 3 of the Code.
[12]
[24]
There was no response to the letter.
[25]
With regards to the Code, the Minister says that the Code:
imposes a positive duty on Swaziland News to verify the information
they
wish to publish and to afford the persons and/or entities to
whom the content relates a fair and reasonable opportunity to respond
thereto; and the existence of the Code demonstrate that a society now
recognizes the media has a positive duty of care to afford
any
individual or entity a fair opportunity to comment on
prima facie
and/or per se defamatory allegations concerning that individual
or entity.
[26]
The eSwatini Government also wrote to the third respondent. No
response was received from any of the respondents. However, in an
article published in the Times of Swaziland on 8 March 2021, it was
reported that the King has hired a South African law firm to
deal
with Swaziland News and Mr. Dlamini. This, according to the Minister,
is proof that the Swaziland News and Mr. Dlamini received
the
correspondence. In addition, the article quoted extensively from one
of the eSwatini Government’s letters.
[27]
The Minister says that it does not “quarrel” with
the respondents’ entitlement to write about the eSwatini
Government.
However, the eSwatini Government is entitled to: “
fair
and reasonable treatment from the media”
; “
have
their version fairly reflected in articles which refer to them
”;
“
prevent one-sided articles appearing about them where they
have something to say which is relevant”
; “
and,
obtain relief to prevent them from being needlessly defamed on and
ongoing basis
”.
[28]
The Minister further alleges that: the publication of the
articles is continuous and ongoing; Swaziland News’
Twitter and Facebook accounts have large numbers of followers;
the impact of the harmful contact is no doubt extremely far
reaching;
the eSwatini Government have a right not to be defamed; the public
has the right to news which accurately and fairly
reflects events;
the respondents have a duty of care to:- report news
truthfully, accurately and fairly; present
only what may reasonably
be true as fact; verify the accuracy of doubtful information;
seek the views of the subject of critical
reportage in advance of
publication; exercises care and consideration in matters involving
the private lives of individuals; and
exercise care and
consideration in matters involving dignity and reputation.
[29]
According to the Minister, the respondents have failed to
adhere to aforesaid duties and obligations all of which leads to the
irresistible
conclusion that the respondents intended or continue to
intend to defame the eSwatini Government. This is all the more so
because
the respondents have failed to heed the eSwatini Government’s
demand not to resist defaming the eSwatini Government and not
to
comply with the Code. In addition, it is the eSwatini Government’s
position that, separate and distinct from the Code,
equity, fairness
and the public good require persons such as the respondents who wish
to convey of the sort in the articles to
do so responsibly and in a
balanced way.
[30]
The eSwatini Government submitted a complaint to the Press
Council Ombudsman despite Swaziland News not being registered with
the
Council and in that sense not bound by the Code. No response was
received from the Council. The Minister alleges that he is aware
that
the complaint was sent to the council because an article appeared in
the Times of Swaziland which constitutes an admission
that the
Council forwarded the complaint to Swaziland News.
[31]
The Minister concludes saying that the eSwatini Government has
satisfied the requirements for the relief he and the eSwatini
Government
seeks.
Swaziland
News defences
[32]
Swaziland
News opposes the application on the basis that: the eSwatini
Government has failed to demonstrate a clear or
prima
facie
right;
the eSwatini Government has not identified the legal system it
contends finds application; the law of eSwatini applies in
terms of
the
lex
loci delicti
commissi
[13]
and the
lex
causa
[14]
and the eSwatini
Government has failed to plead such law.
[33]
Swaziland News contends that even if eSwatini recognises a
civil cause based on defamation, such law cannot be applied by a
South
African court as it conflicts with the South African law; the
South African law of defamation does not protect the good name of
a
government; even if the South African law applies, in the absence of
a clear and definite right, the eSwatini Government fails
to pass the
first threshold and therefore the application must fail.
[34]
Swaziland News also contends that the eSwatini Government has
failed to demonstrate the right to a good name and reputation on
which
it relies because the eSwatini Government has failed to specify
why it contends that the articles are defamatory the eSwatini
Government
has not laid the basis for an apprehension of future harm.
[35]
Furthermore, Swaziland News says that the application has been
instituted for extraneous purposes and constitutes an abuse of
process
because the eSwatini Government does not only seek the draft
article but also the material upon which the article is based, this
in turn will impermissibly constrain Swaziland News to disclose its
sources; and the true purpose of the application is to obtain
the
respondent’ confidential sources and stifle freedom of press in
eSwatini.
[36]
Swaziland News say
that it is disturbing that the eSwatini Government elected to refer
to certain articles and failed to give conflicting
information
disputing the articles and therefore, a clear dispute of fact arises.
The Minister has failed to furnish confirmation
that he represents
the King and the whole of the eSwatini Government. The persons
complaining about the articles should have brought
applications in
their own names. Swaziland News admit that they are not registered
with the Council. As a matter of fact, Mr Dlamini
says:
“
Swaziland
News is an independent news publication, does not and will not,
submit to the jurisdiction of the Press Council”
[15]
.
[37]
Swaziland News admits that they have not responded to eSwatini
Government’s attorney’s letters.
[38]
Swaziland News admits that it published all of the articles
which was included under the heading “
Ongoing Attacks on the
eSwatini Government and the Head of State”
). Swaziland News
denies that the articles are defamatory of the individuals mentioned.
[39]
Swaziland News, in addition, say that it is clear that the
eSwatini Government seeks an infinite limitation of the freedom of
expression
while such right has Constitutional protection. The
eSwatini Government has failed to say why such right must be limited.
[40]
Finally, Swaziland News say that the eSwatini Government has
failed to show that balance of convenience favours it.
[41]
Swaziland News admits the articles and also refers to other
articles about actions of the King, an army commander, the Minister,
the Police. Swaziland News alleges that the applicant is misleading
when he states that none of Swaziland News’s articles
constitute public news but are mere “exposés”.
[42]
Mr. Dlamini admits
that he is the author of the articles appearing on Swaziland News’s
website. Swaziland News does not deny
that it published the articles.
What Swaziland News says is that the eSwatini Government has failed
to “…
.substantiate
its claims that the impugned articles are defamatory”
[16]
…
..
“of the affected persons”
[17]
.
[43]
Swaziland News
also takes issue that the eSwatini Government provided no evidence
disputing the content of the articles in these
proceedings. Swaziland
News contends that it is severely prejudiced by eSwatini Government’s
failure to present inadequate
evidence where the eSwatini Government
seeks a final interdict. For this reason, Swaziland News finds it
impossible to respond
to “…
.a
blanket allegation stating that the news articles referred to are
either false, defamatory, unsubstantiated or that such cause[ed]
reputational harm”
.
[18]
Swaziland News says that “….
the
applicant seeks, by implication, a declaration as to the King and the
whole of the eSwatini Government being defamed, yet did
not present
sufficient evidence for the consideration of such an order”
.
[19]
Swaziland News admits that the articles refer to the persons
mentioned therein. Swaziland News denies that it is bound by the
Code. Swaziland News alleges that if Swaziland News is forced to hold
over news for three to seven days, its business would be destroyed.
Swaziland News denies that the articles are harmful.
[44]
Swaziland News contends that a government cannot be defamed,
if members of the eSwatini Government were defamed, they should have
instituted individual actions this includes the monarchy. No persons
seeking to enforce personal rights are before the court.
Discussion
[45]
I have to decide, firstly whether the law of South Africa
applies, secondly, if the South African law applies, whether the
articles
are
prima facie
defamatory, thirdly, if the articles
are
prima facie
defamatory, whether the respondents have
established any justification for their conduct, fourthly, whether
the Minister has
locus standi
to represent himself and those
who he purports to represent; fifthly whether Minister (and those who
he purports to represent)
has established the requirements for an
interdict and, lastly whether the Minister and the eSwatini
Government are entitled to
the declaratory relief they seek.
What
law to apply
[46]
The articles were published on the world wide web. The
respondents are domiciled in South Africa. The Minister (and those
who he
purports to represent) are peregrine.
[47]
In my view no other law concerning the defamation but the
South African is to be applied. Whether the articles were published
on
the internet is of no moment. Long gone are the days when news was
disseminated through newspapers, either bought at a corner store
or
delivered to those who were fortunate. Today news is disseminated
almost instantaneous over the myriad of electronic media at
communities’ disposal. News content is open for everyone who
has connectivity to read. In our modern era, it is nearly impossible
to determine where content is heard or read. It is not the manner in
which a publication took place or where it is read. It is
about
publication of defamatory content in whatever way. The manner in
which the content was published serves to limit or expand
the reach
of a defamatory statement. Surely, defamation over the internet and
various social media platforms has a wide reach.
In my view such
publication with its wider reach makes the defamatory statement all
the more far reaching, damaging and profound.
[48]
Although Swaziland
News says that this court has jurisdiction to adjudicate the
matter
[20]
I nevertheless deal
with the issue of jurisdiction because Swaziland News also pleads
that the court must choose what law to apply,
either the law of
eSwatini or the South African Law. The question of which law to apply
lies closely with the issue of jurisdiction
because the law that is
applied will ultimately also determine the effectiveness of the
court’s order.
[49]
In this instance,
Swaziland News pleads that in terms of the
lex
loci delicti comissi
,
“…
.defamation
occurs where the (allegedly) defamatory words are read or heard.
”
[21]
It is common cause that the articles were published over the
internet. As I have said, the nature of the internet (and social
media) is that content can be read virtually everywhere in the world.
[50]
If the enquiry is
whether this court has jurisdiction to adjudicate over defamation
committed by publication on the internet, the
answer is whether there
is “…
.an
adequate connection between the suit and the area of jurisdiction of
the South African court concerned from the point of view
of
appropriateness and convenience of its being decided by that court.
Appropriateness and convenience are elastic concepts which
can be
developed case by case. Obviously the strongest connection would be
provided by the cause of action arising within that
jurisdiction.’
[22]
[51]
In this instance, the articles were published by Swaziland
News on a website hosted by the third respondent, all of whom are
domiciled
in South Africa. Mr Dlamini says that he finds himself in
hiding in South Africa and admits that he wrote the articles. Even if
he was not in South Africa when he wrote the articles, the
publication of the defamatory articles was complete upon publication
of the articles by Swaziland News on the website hosted by the third
respondent. The publication of the articles shows Mr. Dlamini
and
Swaziland News’s intent to publish what they did concerning the
Minister and those who he purports to represent.
[52]
IRD Global
Limited v The Global Fund to fight AIDS, Tuberculosis and Malaria
[23]
dealt with the publication of a defamatory statement over the
internet. The court held that: “
A
basic principle in our law of jurisdiction is that of effectiveness.
A court must be able to give effect to its judgment…..”
[24]
[53]
If the respondents are interdicted, this court will be in a
position to act should the respondents offend the order this court
may
grant. This court will therefore be able to give effect to its
order if granted. Therefore, this court has jurisdiction to
adjudicate
the dispute as this court will be in a position to enforce
the interdict sought by the Minister.
Defamation
[54]
The elements of
the delict of defamation are: (a) the wrongful and (b) intentional
(c) publication of (d) a defamatory statement
(e) concerning the
plaintiff. Once a plaintiff establishes that a defendant has
published a defamatory statement concerning the
plaintiff, it is
presumed that the publication was both unlawful and intentional.
A defendant wishing to avoid liability
for defamation must then raise
a defence which rebuts unlawfulness or intention.
[25]
[55]
Holomisa v
Argus Newspapers Ltd
[26]
dealt with an article that was published in a newspaper concerning a
political office bearer. The following was said concerning
defamation:
“
The right to claim
damages for defamation is rooted in the protection South African law
accords more generally to the rights of
personality. This goes back
to Johannes Voet and to the Roman sources he relied upon, in
particular the title in Justinian’s
Digest “concerning
deliberate wrongs and defamatory articles” (de injuriis et
famosis libellis) (Digest 47.10): see
Nasionale Pers, Bpk v Long
1930
AD 87
at 99. Voet, writing in late seventeenth century Holland,
produced a commentary on the title. The most influential commentary
on
and exposition of Voet (see the remarks of Corbett CJ in Argus
Printing and Publishing Co Ltd and others v Esselen’s Estate
1994 (2) SA 1
(A) at 23D-I) is that of Melius de Villiers (The Roman
and Roman-Dutch Law of Injuries – A Translation of Voet Book
47.10
with Annotations (1899)):
“
The specific
interests that are detrimentally affected by the acts of aggression
that are comprised under the name of injuries [injuriae]
are those
which every man has, as a matter of natural right, in the possession
of an unimpaired person, dignity and reputation.
By a person’s
reputation is here meant that character for moral or social worth to
which he is entitled amongst his fellow-men;
by dignity that valued
and serene condition in his social and individual life which is
violated when he is, either publicly or
privately, subjected by
another to offensive and degrading treatment, or when he is exposed
to ill-will, ridicule, disesteem or
contempt.
The rights here referred
to are absolute or primordial rights; they are not created by, nor
dependent for their being upon, any
contract; every person is bound
to respect them; and they are capable of being enforced by external
compulsion. Every person has
an inborn right to the tranquil
enjoyment of his peace of mind, secure against aggression upon his
person, against the impairment
of that character or [of?] moral and
social worth to which he may rightly lay claim and of that respect
and esteem of his fellow-men
of which he is deserving, and against
degrading and humiliating treatment; and there is a corresponding
obligation incumbent on
all others to refrain from assailing that to
which he has such right.”
[56]
In determining
whether a publication is defamatory, a two stage inquiry must be
undertaken. The first inquiry is to determine the
meaning of the
words in the publication as a matter of interpretation and the second
inquiry is whether the meaning of the words
of in the publication is
defamatory.
[27]
[57]
Having regard to the content of the articles individually and
in their totality, I have no doubt that the articles defame the
persons
mentioned therein. The articles, read in their totality and
considered objectively impairs the character, moral and social worth
of those persons mentioned in the articles. The articles prejudice
the respect and esteem of those mentioned in the articles amongst
their fellow men and women and are humiliating in their content.
There persons’ valued and serene condition in their social
and
individual lives may have been violated.
[58]
I turn to the question whether the articles were intentionally
published and with what intention. The respondents do not dispute
that the articles were published. There can be no doubt that the
respondents intended to publish the articles and communicate the
content therein to Swaziland News’s audience whether on its
social media platform or on its website.
[59]
If a statement is
defamatory, intention to injure is presumed. In
Khumalo
and Others v Holomisa
[28]
,
the intention to defame was considered. It was said:
“
[20]
In Bogoshi, too, the question of the rebuttal of intention was
considered.
One of the aspects of animus injuriandi (the
intention to cause injury) is subjective intent which, amongst other
things, requires
the person who made the defamatory statement to have
been “conscious of the wrongful character of his act”.
In 1982, the Appellate Division held that the mass media could not
avoid liability for the publication of a defamatory statement
by
relying on a defence that the publication was not intentionally
injurious. The effect of this decision was to impose
strict liability upon the media for the unlawful publication of
defamatory material. In Bogoshi, the Supreme Court of Appeal
overruled this decision. Hefer JA held that the Court in
Pakendorf’s case had failed to recognise the importance
of
freedom of expression and, in particular, the important role the mass
media perform in a democratic society. He concluded
that:
“
If we recognise,
as we must, the democratic imperative that the common good is best
served by the free flow of information and the
task of the media in
the process, it must be clear that strict liability cannot be
defended and should have been rejected in Pakendorf.”
(at
1210).
Hefer JA then considered
whether media defendants should be permitted to rebut the presumption
of intentional harm by establishing
a lack of knowledge of
wrongfulness, even where that lack of knowledge was as a result of
the negligence of the defendant.
He concluded that they should
not, reasoning as follows:
“
If media
defendants were to be permitted to do so, it would obviously make
nonsense of the approach which I have indicated to the
lawfulness of
the publication of defamatory untruths. In practical terms
(because intoxication, insanity, provocation and
jest could hardly
arise in the present context) the defence of the lack of animus
injuriandi is concerned with ignorance or mistake
on the part of the
defendant regarding one or other element of the delict. . . . The
indicated approach is intended to cater for
ignorance and mistake at
the level of lawfulness; and in a given case negligence on the
defendant’s part may well be determinative
of the legality of
the publication. In such a case a defence of absence of animus
injuriandi can plainly not be available
to the defendant.
Defendants’
counsel, rightly in my view, accepted that there are compelling
reasons for holding that the media should not
be treated on the same
footing as ordinary members of the public by permitting them to rely
on the absence of animus injuriandi,
and that it would be appropriate
to hold media defendants liable unless they were not negligent in the
circumstances of the case.”
(at 1214C-F).
Hefer JA therefore
concluded that media defendants could not escape liability merely by
establishing an absence of knowledge of
unlawfulness. They
would in addition have to establish that they were not negligent.”
[60]
Swaziland News
says that the eSwatini Government did nothing to prove that the
information in the articles was false. From
Khumalo
[29]
,
it is clear that an onus rested upon Swaziland News to prove that the
information was true but even if it was false, that Swaziland
News
was not negligent in publishing the articles. This Swaziland News did
not prove.
[61]
In
Economic
Freedom Fighters and Others v Manuel
[30]
,
in respect of media defendants, the court said:
“
If untrue
defamatory material was published in circumstances where it was
reasonable to publish those particular facts in that particular
way
at that particular time the media were afforded a new defence of
reasonable publication. This rebutted the prima facie unlawfulness
of
the publication. Whether publication was reasonable would involve an
assessment of a number of factors, including the reliability
of the
source and the steps taken to verify the information. It goes without
saying that it would have to be shown that they were
satisfied that
the information was true.
[62]
Save to say that Swaziland News need to protect its sources,
absolutely nothing further is said by Swaziland News over the
reliability
of their sources and the steps they have taken to verify
the information upon which the articles were based. Some of the
information
may be true but, despite its possible truth, the manner
in which these facts were presented and the comment on the facts,
true
or false, constituted the sting complained of by the Minister
and the eSwatini Government.
Were
the articles justified?
[63]
Further defences
available to Swaziland News are those arising from the objective
factors surrounding the articles – truth,
privilege, fair
comment and other forms of justification.
[31]
[64]
But for two
instances, Swaziland News does not claim that the statements are
true. What Swaziland News appears to raise the defence
of reasonable
publication. I say appears to raise the defence of reasonable
publication because Swaziland News does not label its
defence this
way. What Swaziland News, in addition to its grounds of opposition
set out above, do is to attempt to elaborate on
its grounds of
opposition by setting out certain background facts. These background
facts include: a brief description of the eSwatini
Government’s
human rights abuses, the internal criticism against and
dissatisfaction with the rule of the King and the international
criticism of the violation of the right to freedom of expression and
other human rights in eSwatini.
[32]
[65]
In
Economic
Freedom Fighters
[33]
,
the Supreme Court of Appeal to dealt with the defence of reasonable
publication. The Supreme Court of Appeal said:
“
In formulating the
defence of reasonable publication, Hefer JA had regard to
developments in Australia and the United Kingdom as
well as a
statement of the law in the Netherlands. Internationally the law has
moved on since then. For example, he referred to
the decision of the
Court of Appeal in the UK in Reynolds.The appeal from that judgment
was heard after the judgment in Bogoshi
and referred to it in a
comprehensive survey of the approach taken in the United States,
Canada, India, Australia, South Africa
and New Zealand to issues of
the media's liability for defamation in regard to public figures,
political expression and the requirement
of reasonable care in
publishing defamatory matter in respect of such public figures. Given
that these judgments were based on
widely differing constitutional
provisions, local statutes and developments of the common law from
widely differing bases, it is
no surprise that in the leading speech
for the majority Lord Nicholls of Birkenhead concluded that the
solutions were not uniform
and each was not without its critics in
its home country. In regard to the Court of Appeal's decision on
which Hefer JA had placed
some reliance it was said that its
'formulation of three questions gives rise to conceptual and
practical difficulties and is better
avoided'.
[50] The end result was
that the House of Lords in Reynolds declined, by a narrow majority,
to create a new category of occasions
when privilege derives from
political information alone. It held that the existing defence of
qualified privilege was sufficiently
flexible to accommodate the
problems encountered by the media in reporting on matters of public
concern, whilst giving appropriate
protection to reputation. Lord
Nicholls said that in determining whether the occasion on which
publication occurred was privileged,
a range of matters ought to be
taken into account, of which ten were mentioned as illustrative only,
namely:
'1. The seriousness
of the allegation. The more serious the charge, the more the public
is misinformed and the individual
harmed, if the allegation is not
true.
2. The nature of
the information, and the extent to which the subject-matter is a
matter of public concern.
3. The source of
the information. Some informants have no direct knowledge of the
events. Some have their own axes to grind,
or are being paid for
their stories.
4. The steps taken
to verify the information.
5. The status of
the information. The allegation may have already been the subject of
an investigation which commands respect.
6. The urgency of
the matter. News is often a perishable commodity.
7. Whether comment
was sought from the plaintiff. He may have information others do not
possess or have not disclosed. An
approach to the plaintiff will not
always be necessary.
8. Whether the
article contained the gist of the plaintiff's side of the story.
9. The tone of the
article. A newspaper can raise queries or call for an investigation.
It need not adopt allegations as statements
of fact.
10. The circumstances of
the publication, including the timing.
This list is not
exhaustive. The weight to be given to these and any other relevant
factors will vary from case to case. Any disputes
of primary fact
will be a matter for the jury, if there is one. The decision on
whether, having regard to the admitted or proved
facts, the
publication was subject to qualified privilege is a matter for the
judge. This is the established practice and seems
sound. A balancing
operation is better carried out by a judge in a reasoned judgment
than by a jury. Over time, a valuable corpus
of case law will be
built up.'” (Endnotes omitted)
[66]
I have considered the content of the articles as a whole
against the factors listed above. The allegations against the
eSwatini
Government and especially, the King are serious and
explicitly defamatory upon a mere reading thereof. What the King and
his government
does is of course of public concern and should be
reported on subject thereto that the reports are fair and balanced.
The source
of the information in the articles are not disclosed by
Swaziland News. The timing of the articles coincided with the public
uprising
in eSwatini. No comment was sought from the eSwatini
Government prior to the publication of the articles. The tone of the
articles
was extremely critical and stated as fact. No balanced view
was given. The articles were not independent and constituted the most
severe criticism against the King and the eSwatini Government. The
timing of the articles, coinciding with the public uprising,
was
clearly aimed at or had the potential or indeed did fuel the
perpetrators of the uprising and clearly sought to gain support
for
the dissidence.
[67]
Having regard to
the factors to be considered in order to determine whether the
articles were reasonable, I conclude they were not.
To the extent
that Swaziland News sought to rely, albeit not set out explicitly
that the articles were reasonable, I find that
the articles were
unreasonable. No defence is established by Swaziland News in this
regard.
[34]
[68]
I find that the publication of the articles was unlawful as
Swaziland News did not establish any of the established grounds of
justification.
Swaziland News has overreached in respect of its
freedom of speech right. Swaziland News has gone too far. Even with
the most liberal
interpretation of the Code, Swaziland News
transgressed what is accepted as journalistic ethics. I am mindful
that a transgression
of a particular ethical rule in the Code may not
necessarily be unlawful but, considering that the Code may be seen as
the conviction
of the community insofar as it relates to fair
journalism, and having regard to the provisions of the South African
and Swaziland
Constitutions, Swaziland News’s conduct is
unlawful.
Standing
[69]
Swaziland News challenges the Minister’s standing to
approach the court on the eSwatini Government’s behalf.
Swaziland
News alleges that the persons mentioned in the articles
could have approached court for the relief on their own behalf.
Swaziland
News further alleges that a government cannot be defamed
and that the Minister is not before court in his personal capacity
and
therefore he cannot be suited.
[70]
The Minister counters Swaziland News’s challenge over
locus standi
by relying on the Minister’s allegation
that he acts in his representative capacity. In the eSwatini
Government’s
heads of argument, the eSwatini Government relies
on the provisions of sub-sections 38(c) and (d) of the South African
Constitution.
Section 38 of the South African Constitution reads:
“
Enforcement of
rights.—Anyone listed in this section has the right to approach
a competent court, alleging that a right in
the Bill of Rights has
been infringed or threatened, and the court may grant appropriate
relief, including a declaration of rights.
The persons who may
approach a court are—
(a)
anyone acting in their own interest;
(b)
anyone acting on behalf of another person who cannot act in their
own
name;
(c)
anyone acting as a member of, or in the interest of, a group
or class
of persons;
(d)
anyone acting in the public interest; and
(e)
an association acting in the interest of its members.”
[71]
The Minister
alleges that his and those who he purportedly represents’ right
to dignity have been infringed by Swaziland News.
[35]
The first requirement for a reliance upon section 38 of the South
African Constitution is therefore satisfied.
[72]
The eSwatini Government argues in its heads of argument that
the Minister, in terms of sub-section 38(c) of the South African
Constitution
acts on behalf of the eSwatini Government of which the
Minister is a member or on behalf of the eSwatini Government which
constitutes
a group or class of persons. In addition, the eSwatini
Government argues that the Minister acts in terms of sub-section
38(d) in
the public interest. Neither the Minister nor the eSwatini
Government has made out such a case in the eSwatini Government’s
founding papers. Even when considering the totality of the facts that
are relied upon by the Minister (or the eSwatini Government),
without
the Minister or the eSwatini Government expressly saying so, no is a
case made out by the Minister or the eSwatini Government
for a
reliance upon sub-sections 38(c) and (d) of the South African
Constitution.
[73]
Locus standi
is both about procedure
and substance. Procedure would have demanded that the Minister be
cited separately from his representative
capacity. Procedure cannot
trump substance. In any event, the Minister says that any reference
to “applicants” includes
himself in his personal capacity
and in his representative capacity.
[36]
There is therefore no substance in Swaziland News’s challenge
to the Minister’s standing in his personal capacity.
[74]
With regards to those who the Minister purportedly represent,
the Minister himself says that each of those persons have standing
to
have approached this court. The Minister is correct but they did not.
Nothing prevented them from doing so.
[75]
Insofar as the King is concerned, the Minister relies on the
Swaziland Constitution, more particularly, section 10 thereof. It
reads:
“
The King and
iNgwenyama shall be immune from –
(a)
suit or legal process in any cause in respect of all things done or
omitted to be done by
him; and
(b)
being summoned to appear as a witness in any civil or criminal
proceeding.”
[76]
Section 10 of the Swaziland Constitution does not prevent the
King from approaching court for relief. The section bars the King
from being taken to court in his own country. The eSwatini
constitution constitutes municipal law. That law does not apply in
South
Africa. Therefore, nothing prevented the King from approaching
this court for relief on his own behalf. It is not that the King
would be remediless without the Minister acting on his behalf.
The
interdict sought
Did
the Minister (and those he purports to represent) establish a right
worthy of protection?
[77]
An interdict is an
appropriate remedy for protection against defamation. In
Economic
Freedom Fighters and Others v Manuel
[37]
it was said:
“
Where defamation
is established and the defences to a claim for an interdict are shown
on the papers to be without substance, the
grant of a final interdict
is permissible.”
[78]
The Minister is seeking a permanent interdict. The
requirements for a permanent interdict is a clear right, a reasonable
apprehension
of irreparable harm; and no other satisfactory remedy.
Clear
right
[79]
The Minister says as follows:
“
The respondents’
publication of the offensive articl[e] is unlawful and/or wrongful
and published with the intent to defame
various Ministers and/or
public officers and/or royal family member [sic]. It further seeks to
defame the Head of State and the
Government.”
“
The defamatory
statements remain in circulation and continue to cause reputational
harm to the Head of State, the royal family,
the Government, and
others within the Government.”
[38]
[80]
The Minister approaches this court in his own name and also in
his representative capacity. None of the articles refer to the
Minister.
One article refers to the Minister’s spouse. In this
article it is said that the Minister’s spouse “…
looted
R 200 000.00 from funds as allowance for one international trip”
.
The Minister was not defamed. Perhaps his spouse was. None of the
Minister’s personal rights were infringed. Therefore,
the
Minister has not established an infringement of his personal rights
and is not entitled to interdictory relief.
[81]
Insofar as the
King and other officials of the eSwatini Government are concerned, I
am of the view that the King and the other officials
have not
established a clear right. No evidence was brought to court about the
effect of the statements in the articles on them.
To put it
differently, they have not put forth any evidence how they were
affronted because “
Someone
who is not affronted by a publication and who does not feel
humiliated will not sue for defamation. That is why the award
of
damages compensates ‘the plaintiff for injured feelings and for
the hurt to his or her dignity and reputation.’
As F P van den
Heever J once said, ‘an action on defamation has several
purposes: to kill libel, to recover a solatium for
injured feelings
and to recover a penalty from the slanderer’.
[39]
[82]
The King and the other persons purportedly being represented
by the Minister must be non-suited. Therefore, in respect of the
Applicant
and those he purportedly represents, I need not consider
the other requirements for an interdict. I nevertheless, and, the
event
that I am wrong in the aforesaid finding, deal with the other
requirements for an interdict.
Reasonable
apprehension of irreparable harm
[83]
The papers show that the eSwatini Government has a reasonable
apprehension of irreparable harm. It is clear that Swaziland News has
no intention to resist from publishing defamatory statements over the
Minister. This is fully demonstrated by Swaziland News’s
conduct to continue with its unlawful conduct notwithstanding the
eSwatini Government’s letters and the issuing of this
application.
No
other remedy
[84]
The eSwatini Government satisfies the requirement of no other
remedy. The ongoing unlawful conduct of Swaziland News will not fit
a
claim for damages because when will the Minister’s claim be
complete or should he institute a claim every time Swaziland
News
defames him, or should he wait for a few instances of defamation and
then institute multiple claims? The only remedy available
to the
Minister is an interdict.
[85]
To the extent that this court has a discretion in granting an
interdict, I also consider convenience. Inasmuch I appreciate that
granting the interdict in prayer 1 of the Amended notice of motion,
may delay Swaziland News to publish, they are, by granting
the
interdict, only forced to comply with what the Code requires. I agree
with the Minister’s contention that the Code is
norms and
standards that society finds acceptable. Swaziland News will be
forced to act responsibly. Media freedom is not an absolute
right.
Declaratory
relief: Constructive contempt of court and Terrorism
[86]
The Minister, in addition, also seeks declaratory relief in
paragraph 2 of the amended order prayed for.
Terrorism
[87]
The acts complained of by the Minister constitutes a crime. In
terms of section 179(2) of the Constitution of South Africa, the
prosecuting authority has the power to institute criminal proceedings
on behalf of the state, and to carry out any necessary functions
incidental to instituting criminal proceedings.
[88]
Whether a crime is committed and whether to institute criminal
proceedings is a matter that falls within the competence of the
National
Director of Prosecutions.
[89]
To declare that the respondents “…
.have
committed acts of terrorism under sections 2 and 3 read with the
definition of terrorist activity in section 1 of the Protection
of
Constitutional Democracy Against Terrorist and Related Activities Act
no 33 of 2004 by publishing false allegations against
King
Mswati of eSwatini and the soldiers and police of the
Eswatini government in the articles of 25 November
2022 and 13
November 2022 in relation to the terrorist activities of the
organization known as the Swaziland International Solidarity
Forces
described in those articles”
would not only offend the
principle of separation of powers but also convict the respondents
without a fair trial. This relief must
therefore be dismissed.
Constructive
contempt
[90]
In respect of the
constructive contempt of court declaratory order that the eSwatini
Government seeks, the Minister in his heads
of argument, relies upon
Consolidated
Fish Distributors (Pty) Ltd v Zive and Others
[40]
for
its contention that
Swaziland
News is in constructive contempt of court.
[91]
In
Virtual
Benefit Solutions Tech (Pty) Ltd v Koekemoer and Others
[41]
it was decided that constructive contempt is only committed where a
party acts maliciously to frustrate the ability of a court
to decide
an issue that it has not yet been able to determine.
[92]
When Swaziland News continued to publish about the eSwatini
Government subsequent to the eSwatini Government’s attorney’s
letters and after Swaziland News had notice of application, the
eSwatini Government’s cause has already matured.
[93]
Nothing that was done by Swaziland News could frustrated the
ability to decide the issue of the defamation already committed.
Swaziland
News did not deliberately frustrate the order the court
would probably make. What Swaziland News demonstrated was that it
would
continue despite the eSwatini Government’s challenge.
Swaziland News did not maliciously frustrate the ability of the court
to decide the issues in this application. Therefore, the relief
sought in this regard must also fail.
Costs
[94]
The Minister was unsuccessful. There is no reason why the
Minister should not be ordered to pay costs. Save for the
respondents’
heads of argument that was filed on behalf of all
the respondents, the third respondent did not participate in these
proceedings.
The third respondent is not entitled to costs. I have
resolved to award counsel’s costs on Scale C due to the
complexity
of the matter.
[95]
In the premises, I made the following order:
(a)
The application is dismissed.
(b)
The applicant is ordered to pay the
first and second
respondents’ costs including the costs consequent upon the
employment of Senior Counsel to be taxed in accordance
with Scale C
as contemplated in sub-rule (3) of the Uniform Rule 67A.
Roelofse AJ
Acting Judge of the High
Court
DATE
OF HEARING:
13
August 2024
DATE
OF JUDGMENT:
27
September 2024
APPEARANCES
For
the Applicant:
Adv
GD Harpur SC
Instructed
by Savage, Jooste & Adams Inc.
For
the Respondents:
Adv
Myron Dewrance SC
Adv
Basni Rowjee
Instructed
by Gardee Godrich Attorneys
[1]
King Mswati III is defined as “the King” in
the
Swaziland Constitution.
[2]
Para.
3.1 of the founding affidavit at p. 11.
[3]
2002
(4) SA 294.
[4]
(CCT
39/21)
[2022] ZACC 34
;
2022 (12) BCLR 1521
(CC);
2023 (1) SA 353
(CC) (22 September 2022) para 49.
[5]
Id
note 3.
[6]
[2007] ZASCA 56
;
[2007]
3 All SA 318
(SCA);
2007 (9) BCLR 958
(SCA);
2007 (5) SA 540
(SCA);
2007 (2) SACR 493
(SCA).
[7]
Para.
51 of the replying affidavit at p. 367.
[8]
The
Notice of Motion was filed on 22 November 2023.
[9]
At
pages 444 to 447.
[10]
[1996] ZASCA 107
;
[1996]
4 All SA 675
(A).
[11]
Adopted by the Press Council of South Africa and the Interactive
Advertising Bureau South Africa adopt the following Code for
print
and online media.
[12]
“The media shall:
1.1
take care to report news truthfully, accurately and fairly;
1.2
present news in context and in a balanced manner, without any
intentional or negligent departure from the facts whether by
distortion, exaggeration or misrepresentation, material omissions,
or summarization;
1.3
present only what may reasonably be true as fact; opinions,
allegations, rumours or suppositions shall be presented clearly
as
such;
1.4
obtain news legally, honestly and fairly, unless public interest
dictates otherwise;
1.5
use personal information for journalistic purposes only;
1.6
identify themselves as such, unless public interest or their safety
dictates otherwise;
1.7
verify the accuracy of doubtful information, if practicable; if not,
this shall be stated;
1.8
seek, if practicable, the views of the subject of critical reportage
in advance of publication, except when they might be
prevented from
reporting, or evidence destroyed, or sources intimidated. Such a
subject should be afforded reasonable time to
respond; if unable to
obtain comment, this shall be stated;
1.9
state where a report is based on limited information, and supplement
it once new information becomes available; 1.10 make
amends for
presenting inaccurate information or comment by publishing promptly
and with appropriate prominence a retraction,
correction,
explanation or an apology;
1.11
prominently indicate when an online article has been amended or an
apology or retraction published and link such to that
text, while
the original article may remain;
1.12
not be obliged to remove any article which is not unlawfully
defamatory; and
1.13
not plagiarise.
2.
Independence and Conflicts of Interest The media shall:
2.1
not allow commercial, political, personal or other non-professional
considerations to influence reporting, and avoid conflicts
of
interest as well as practices that could lead readers to doubt the
media’s independence and professionalism; 2.2 not
accept any
benefit which may influence coverage;
2.3
indicate clearly when an outside organization has contributed to the
cost of newsgathering; and
2.4
keep editorial material clearly distinct from advertising and
sponsored events.
3.
Privacy, Dignity and Reputation
The
media shall:
3.1
exercise care and consideration in matters involving the private
lives of individuals. The right to privacy may be overridden
by public interest;
3.2
afford special weight to South African cultural customs concerning
the protection of privacy and dignity of people who are
bereaved and
their respect for those who have passed away, as well as concerning
children, the aged and the physically and mentally
disabled;
3.3
exercise care and consideration in matters involving dignity and
reputation, which may be overridden only if it is in the
public
interest and if:
3.3.1.
the facts reported are true or substantially true; or
3.3.2.
the reportage amounts to protected comment based on facts that are
adequately referred to and that are either true or reasonably
true;
or
3.3.3.
the reportage amounts to a fair and accurate report of court
proceedings, Parliamentary proceedings or the proceedings
of any
quasi-judicial tribunal or forum; or
3.3.4.
it was reasonable for the information to be communicated because it
was prepared in accordance with acceptable principles
of
journalistic conduct; or
3.3.5.
the article was, or formed part of, an accurate and impartial
account of a dispute to which the complainant was a party;
[13]
The law of the place where the delict was committed.
[14]
The
proper law.
[15]
Para,
162 of the answering affidavit at page 178.
[16]
Para.
119 of the answering affidavit at 170.
[17]
Para. 121 of the answering affidavit at 171.
[18]
Para.
126 at 172.
[19]
Para.
127 at 172.
[20]
Para
36 of the answering affidavit p. 147.
[21]
Para
37 of the answering affidavit p. 148.
[22]
Bid
Industrial Holdings (Pty) Ltd v John Francis Roderick Strang and
Others
[2007]
ZASCA 144
;
[2007] SCA 144 (RSA);
[2008]
2 All SA 373
(SCA);
2008
(3) SA 355
(SCA)
para 56.
[23]
(504/2023)
[2024] ZASCA 109
(4 July 2024) para 13.
[24]
Para
13 of IRD Global Limited.
[25]
See:
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
CC.
[26]
[1996] 1 All SA 478
(W) at p 487.
[27]
Le Roux v Dey (Freedom of Expression Institute and Restorative
Justice Centre as Amici Curiae)
[2011] ZACC 4
;
2011 (3) SA 274
(CC);
2011 (6) BCLR 577
(CC) at para 38.
[28]
(CCT53/01)
[2002] ZACC 12
;
2002 (5) SA 401
;
2002 (8) BCLR 771
(14 June 2002)
para 20.
[29]
Ibid
45.
[30]
711/2019)
[2020] ZASCA 172
;
[2021] 1 All SA 623
(SCA) ;
2021 (3) SA 425
(SCA)
(17 December 2020) para.
65.
[31]
See:
Suid-Afrikaanse Uitsaaikorporasie v O’Malley
1977 (3) SA 394
(A) and Pakendorf en Andere v De Flamingh 1982 (3) SA 146 (A).
[32]
Summary
found in para 6 of the answering affidavit p.139.
[33]
Id
note 28.
[34]
See:
UDM and Another Id 4.
[35]
Section
10 of the South African Constitution.
[36]
Para
3.1 of the founding affidavit p. 11.
[37]
(711/2019)
[2020] ZASCA 172
;
[2021] 1 All SA 623
(SCA) ;
2021 (3) SA 425
(SCA)
(17 December 2020) para 88.
[38]
Paras
24 and 25 of the founding affidavit at p 30.
[39]
Le
Roux and Others v Dey (44/2009)
[2010] ZASCA 41
;
2010 (4) SA 210
(SCA) ;
[2010] 3 All SA 497
(SCA) (30 March 2010) para 23.
[40]
1968
(2) SA 517
(C) at 523.
[41]
(2023/082132) [2023] ZAGPJHC 1065 (22 September 2023).